from the even-worse-than-we-thought dept

Discussions about the flaws in TPP are severely limited thanks to the extreme secrecy under which it is being negotiated. Essentially, the only areas we can sensibly analyze are where we have leaked chapters. One of these is the text dealing with things like copyright and patents, which we wrote about back in November last year. One aspect of this that has not been discussed much if at all concerns Internet domain names; Susan Chalmers has put together an excellent post exploring why TPP is problematic here too. The relevant section of the TPP leak (Article QQ.C.12:) is extremely short, and reads as follows:

1.56 In order to address the problem of trademark [VN/MX propose: geographical indication and trade name] cyber-piracy, each Party shall adopt or maintain a system for the management of its country-code top-level domain (ccTLD) that provides:

(a)
an appropriate procedure for the settlement of disputes, based on, or modelled along the same lines as, the principles established in the Uniform Domain-Name Dispute-Resolution Policy, or that is: (i) designed to resolve disputes expeditiously and at low cost, (ii) fair and equitable, (iii) not overly burdensome, and (iv) does not preclude resort to court litigation;

(b)
online public access to a reliable and accurate database of contact information concerning domain-name registrants; in accordance with each Party's laws regarding protection of privacy and personal data.

2. [PE/SG/CL/AU/NZ/MY/BN/CA oppose; US/VN/JP/MX propose: Each party shall provide [VN: oppose adequate and effective] [VN propose: appropriate] remedies against the registration trafficking, or use in any ccTLD, with a bad faith intent to profit, of a domain name that is identical or confusingly similar to a trademark [VN/MX propose: , geographical indication or trade name].]

This section is therefore trying to address what it calls "cyber-piracy"; the brackets in the text above show the differing positions held by the negotiating countries. In her post, Chalmers explains:

A ccTLD is "an Internet top-level domain generally used or reserved for a country, a sovereign state, or a dependent territory," for example .nz for New Zealand or .cl for Chile. There are 246 of them. These two letter domains come from the ISO-3166 country code list, and the institutions that manage them range from governmental to academic, commercial to non-profit, to management by an individual, and different shades in between. Initial delegations of ccTLDs were made in the 1980s and 1990s, generally to individuals connected to the Internet, often University personnel. ccTLD managers determine their own policies, "according to the relevant oversight and governance mechanisms within the[ir] country," territory or geographical location.

Currently, each country can essentially run its own top-level domain as it wishes; TPP will change all that:

The TPP however would fix regulatory parameters, and limit the flexibility of the ccTLD in developing its own policies. By and through the Provision, the TPP collides with other ccTLD policy fora. It sets enforceable standards for ccTLD policies where such standards may not otherwise exist, or where the standards clash with pre-existing policy.

In her post, Chalmers runs through the details of how this will play out, and why it's unlikely to be a good idea. She also rightly emphasizes:

such [TPP] requirements may come about not out of consideration for what is best for ccTLD management, but as a result of a trade. Countries' concessions on IP issues may come as a result, for example, of their desire to export more sugar or beef to US markets.

In other words, the horse-trading that typically goes on during these negotiations may see a country's autonomy in the key field of domain names sacrificed in the hope of boosting some local industry. It's yet another example of how a trade agreement can have important implications in other areas -- in this case, how the Internet is run. The analysis from Chalmers is valuable not only for alerting us to this fact, but also emphasizing once more why it is imperative for us to see the draft text of the agreement in order to find its other pitfalls, and then try to fix them.